Wife of man shot and killed by police officer
who received a jury award of $111,000 subsequently reduced in $25,000 in
federal civil rights lawsuit is awarded $111,836.25 in attorneys' fees
and $7,109.99 in costs. She was not entitled to attorneys' fees for post-judgment
motions and appeal when she did not prevail in those efforts.

In a federal civil
rights lawsuit over a police officer shooting and killing her husband,
a woman was awarded $111,000 in damages by a jury, but a federal appeals
court reduced the award to $25,000, concluding that she was not entitled
to recover, as an element of her damages, the loss of enjoyment of life
of her husband. Tinch v. City of Dayton, 77 F.3d 483 (6th Cir.), cert.
denied, 519 U.S. 862 (1996).

The trial court
has now awarded her $111,836.25 in attorneys' fees and $7,109.99 in costs,
rejecting portions of her request for an award of $382,239.79 in attorneys'
fees and costs.

In doing so, the
trial court held:

* that the plaintiff
was not entitled to recover attorneys' fees for time spent on post-judgment
motions and appeal since she did not prevail in those efforts;

* that the plaintiff
was entitled to recover $2,750 to compensate for the time incurred in preparing,
briefing and supplementing the request for attorneys' fees;

* that a reduction
in 30% in the number of hours of attorneys' fees claimed was warranted
because the plaintiff sought compensation for a number of "duplicative"
hours and failed to explain adequately which tasks various attorneys and
paralegals performed, and did not present a consistent record of time entered
contemporaneously with the expenditure of the hours;

* a reasonable hourly
rate for the lead attorney was $150 per hour, since that was sufficient
to encourage competent counsel to represent individuals in similar cases;

* a reasonable hourly
rate for a second chair attorney in the case was $100 per hour since his
participation "was limited," and $50 per hour was a reasonable
hourly fee for the paralegal utilized in the case, given rates charged
in the local legal market;

* no "multiplier"
or "lodestar" was justified in the case as the attorneys' did
not obtain any "exceptional" success for their clients;

* the plaintiff
could recover costs of transcripts of depositions and other depositions
costs, $40 per day plus mileage as the amount authorized to be paid to
witnesses under 28
U.S.C. Secs. 1821(b), and $1,000 as costs for witness fees, but she
could not recover appearance fees charged by court reporters for depositions
which did not occur, office supplies for her lawyer's office, or parking
at a county parking garage;

* while the plaintiff
could recover $2,656.74 for making copies of materials needed in the case,
this was based on a reasonable cost of $0.05 per page, and not on the "excessive"
rate of $0.25 per page requested;

* the plaintiff
could not recover the sum of $6,035.41 paid to private investigators since
that was not set forth as recoverable costs in 28 U.S.C. Sec. 1920;

* the plaintiff
could recover $120 for the cost of service of subpoenas pursuant to 28
C.F.R. Sec. 0.114, but not the sum of $6,275.74 spent to locate potential
witnesses.

Trial judge rules, in excessive force case
involving off-duty officer, that expert witness could provide testimony
concerning the proper police procedures to be followed and how and when
an officer should decide to go from off-duty to on-duty status, but could
not state a specific opinion about the specific facts of the case. The
jury, the judge ruled, could determine on its own whether or not the officer
kicked the plaintiff in the head.

A motorist allegedly
backed his car into that of an off-duty officer. In a federal civil rights
lawsuit he subsequently filed against the city and officer, the motorist
claimed that the officer then pulled him from his car, restrained him on
the ground, and twice kicked him in the head. The officer denied these
allegations. Prior to trial, the defendant officer asked the trial judge
to bar the admissibility of certain evidence, including testimony of an
expert witness.

The motion sought
to bar the testimony of an expert on proper police procedures and his giving
an opinion as to whether they were followed in this case. The defendant
argued that the expert had not based his opinions on scientific, technical
or other specialized knowledge, but instead had simply relied on hearsay
statements of occurrence witnesses, making his proposed testimony nothing
more than his opinion on the credibility of these witnesses.

The plaintiff argued,
to the contrary, that the expert was qualified to give opinion testimony
regarding the appropriate standard of conduct for officers to follow when
off-duty concerning the use of force, and that expert testimony on accepted
police practices is admissible in federal civil rights lawsuits.

In the prior case
of Clark
v. Takata Corp., 192 F.3d 750 (7th Cir. 1999), the court stated, it
was held that a trial court must perform a two-step analysis on the admissibility
of an expert's testimony, first determining whether the expert's testimony
is reliable, that is, whether it is based on a reliable methodology, and
then, secondly "whether evidence or testimony assists the trier of
fact in understanding the evidence or in determining a fact in issue."
Under Federal
Rule of Evidence 702, an individual may be authorized to render expert
opinion testimony on an issue based upon his experience.

The trial judge
ruled that the expert witness was qualified to render an opinion on law
enforcement practices, both from his practical experience and his academic
background. The more difficult question, the court stated, was whether
the testimony would be helpful to the jury. In this case, the court ruled,
some of it would be helpful, and some of it would not.

The plaintiff was
correct, the trial judge ruled, that expert testimony on police practices
and the use of force is "generally admissible in a section
1983 excessive force case," and the court believed that the expert's
testimony "in this area would be helpful to the jury. Accordingly,
the trial judge ruled that he would allow the expert witness to offer testimony
regarding the proper procedures to be used by law enforcement officers
when restraining arrestees who resist arrest, "how and when an officer
should decide to go from off-duty to an on-duty officer, and the propriety"
of the police department's rules of conduct. The court expressed its belief
that the expert "can provide a general framework regarding proper
police conduct which the jury can utilize to determine the specific facts
of this case."

But the trial judge
also restricted the scope of the expert's testimony, ruling that he would
not allow the expert to "offer any specific opinions regarding the
specific facts of this case. The court believes that if it were to allow"
the expert to offer his opinion in this case as to whether the off-duty
officer followed police procedures, the court, in essence, would be allowing
the expert to "make and relay credibility findings to the jury regarding
the witnesses' testimony." Such testimony, the court found, "is
improper and is not helpful to the jury."

The judge found
that expert testimony concerning whether the defendant officer had kicked
the plaintiff in the head was not needed because the jury was capable of
making that determination on its own.

The "court
does not believe that a jury needs an expert witness to tell them that
it is improper--under proper police procedure or even common decency--to
kick someone in the head when he is being restrained on the ground. If
the jury were to find that" the officer "did this, the court
is confident that it would also find this conduct to be reprehensible and
would render a verdict accordingly without the necessity of hearing from
an expert to tell them that this conduct was improper." The expert,
therefore, "may testify as to proper police procedures, but he may
not offer his opinion(s) as to whether those procedures were properly followed
in this case."

Officer did not violate the rights of a man
attending the Timothy McVeigh trial for bombing the Oklahoma City federal
building when he handcuffed him, transported him two blocks away, and questioned
him, given the detainee's known criminal history, including arrests for
mob action and possession of explosives, and his prior temporary commitment
to a mental health facility. Officer's action was a valid investigatory
stop and not an arrest requiring probable cause. Federal court clerk was
entitled to absolute immunity for providing police officer with information
about detainee for purposes of courtroom security.

A man sought press
credentials to attend the federal court trial of Timothy McVeigh, accused
of blowing up the Oklahoma City federal building. In the course of running
a background check to determine whether to issue such credentials, court
officials found that the applicant had a history of arrests and convictions,
including arrests for mob action, possession of explosives, and convictions
for shoplifting and burglary. They also found that he had been temporarily
committed to a mental health facility in Denver for psychological evaluation.
Federal officials forwarded this information to the Denver Police Department,
and denied the application for press credentials.

Despite this, the
man was able to view the trial on the day of the opening arguments as a
member of the public, checking in with the clerk's office and listening
to the trial in an overflow courtroom. When he exited the courtroom from
the first floor during a lunch break, a Denver police officer asked to
speak to him. He allegedly agreed to be questioned, and, in the view of
the gathered media, a number of other officers handcuffed him, placed him
in a patrol car, and drove him to a location two blocks from the courthouse.
Once there, he was questioned, photographed, and released, with the entire
encounter taking less than thirty minutes.

The detainee then
brought a civil rights lawsuit against the clerk of the federal court and
the Denver police officer who asked to speak to him and questioned him.
He contended that they engaged in a conspiracy to violate his constitutional
rights.

A federal appeals
court upheld a determination that the court clerk, who had been delegated
responsibility for coordinating courtroom security by the presiding district
court judge during the high profile trial, had the same absolute immunity
that would "cloak the judge" in regard to his actions taken pursuant
to that function.

The court also held
that the police officers' temporary detention of the plaintiff was a valid
Terry v. Ohio, 392
U.S. 1 (1968) investigatory stop rather than an arrest without probable
cause. Given the officers' knowledge of the detainee's criminal history,
including arrests for mob action and possession of explosives, and his
prior temporary mental health commitment, they acted reasonably in questioning
him, particularly as he agreed to be questioned.

Under these circumstances,
the government's "interest in maintaining security at the trial of
someone accused of bombing a federal courthouse cannot be overstated,"
the court remarked. The detainee had been observed "acting strangely"
outside the courthouse, the court added. The court found that the officers'
actions in transporting the detainee away to question him were reasonable
under the circumstances. Given the detainee's criminal and psychological
history, the officers could reasonably be concerned for their safety, despite
the fact that he had not done anything "provocative at the time of
the encounter to indicate potential danger to the officers."

The transportation
two blocks away from the courthouse and away from the "glare of the
media was taken to minimize the impact of the incident" on the detainee
in keeping with the requirement that Terry stops be as "non-intrusive
as possible."

"Given the
government's interest in providing security for the McVeigh trial, this
intrusion into [the detainee's] freedom was insufficient to constitute
an arrest with the attendant requirement of probable cause," and no
constitutional right was violated.

The appeals court
also held, in the alternative, that even if an unreasonable seizure "had
occurred here," the defendant officer would be entitled to qualified
immunity since a reasonable officer in his position could have believed
that detaining the plaintiff, handcuffing him briefly, and transporting
him away from the courthouse was "within the ambit of acceptable police
responses."

Officers did not violate motorist's Fourth
Amendment rights by arresting him for obstruction of traffic and possession
of a controlled substance even if they did not know what the powdery substance
found in vehicle was. Officers clearly had probable cause for arrest for
obstruction of traffic when motorist was found "asleep" at the
wheel of his car in the street.

Two officers encountered
a man who appeared to be either asleep at the wheel or passed out at a
light in his vehicle, blocking traffic. His head was down, the gear of
the car was in "drive," and his foot was on the brake. The window
was open and the driver did not respond to the officers' verbal attempts
to wake him. One of them then reached in through the open window, shifted
the gear into "park," and tried to wake the driver by shaking
him. He allegedly did not wake up entirely, but kept waking up and then
nodding off to sleep again.

The officers asked
the man to get out of his vehicle and escorted him to the rear of the car,
where they observed that his speech was "slurred" and that they
could not understand what he was saying. One of the officers observed a
backpack in the passenger compartment of the vehicle. It was disputed later
whether the backpack was open or closed. The officer later testified that
he saw a clear "Ziplock" bag sticking out more than halfway from
inside the backpack. Inside was a white powdery substance. The officers
removed the backpack from the car. Further inside it, the officer discovered
a brown bottle labeled in Spanish, which did not show prescription information,
such as a doctor's name or a pharmacy.

The officers handcuffed
the motorist, put him in their squad car and took him to the station, where
he was charged with obstruction of traffic, possession of a controlled
substance, and forging or altering a prescription. He was subsequently
given supervision and a fifty-dollar fine on the obstruction of traffic
charge, and the other two charges were dismissed due to a negative lab
result on the powdery substance.

The motorist filed
a federal civil rights lawsuit contending that the officers searched his
vehicle and backpack without probable cause, a warrant or other lawful
justification, and also that they arrested him without a warrant and without
probable cause for possession of a controlled substance and for the forging
or alteration of a prescription.

The trial court
found that the officers had probable cause to make a warrantless arrest
under the circumstances. It also found that evidence relating to the driver's
alleged treatment for Hodgkin's disease was not relevant to the issue of
whether the officers had probable cause to arrest him at the time they
did so, and was therefore to be excluded. Additionally, the issue of whether
Cynomel, Cytomel, and Synthroid were controlled substances was irrelevant
to the probable cause inquiry, and therefore any evidence as to whether
those substances were controlled substances would be excluded.

The court also held
that as long as the officers had probable cause to believe that the driver
had committed any offense, including a minor traffic offense of obstructing
traffic, they were entitled to arrest him, without violating the Fourth
Amendment.

The court held that
the officers' search of the driver's backpack and the passenger compartment
of his vehicle were incident to a lawful arrest for obstruction of traffic
and driving under the influence, and therefore was not unreasonable.

Because the court
found that the "only reasonable interpretation of the undisputed facts
is that the officers had probable cause to arrest" the plaintiff,
it ruled that the court "need not consider expert testimony on this
issue."

Police officer did not act in an unreasonable
manner by including, in an affidavit for an arrest warrant, statements
by an informant that were contradicted by some other evidence, when there
was also substantial evidence corroborating the informant's statements.

Sometime
after a shooting murder in a bar, an officer alleged that a witness informed
him that she had witnessed a particular man commit the murder. She had
previously acted as a paid police informant in cases the officer had investigated,
and, while he had not always been able to verify her testimony, he had
never in the past found her to be untruthful. He presented her to the investigating
officer in the murder, and she repeated her statements and also identified
the suspect from photographs and stated that she had known him for approximately
six months. Officers also received an anonymous tip stating that the suspect
was the shooter, and the victim's mother also implicated him.

The informant's
statements, however, were in conflict with other evidence. She stated that
she heard only one shot, but the victim was shot three times. She stated
that she had been at the bar with a friend, but the friend denied having
been there. An officer's synopsis of the informant's statement made a reference
to a rear door, but the bar had only one door. Additionally, the bartender
on duty that night denied having seen her or having served her, but admitted
that she paid "no attention" to who was entering and exiting
the bar.

The investigating
officer submitted an affidavit based on the informant's statements and
a warrant for the suspect was issued, which resulted in his arrest. He
was subsequently convicted of the crime, but almost nine years later, new
evidence came to light that the first officer had paid the informant for
her statements and for her testimony against the suspect, and a new trial
was granted. The state decided not to prosecute again.

The arrestee then
sued for false arrest, contending that the affidavit for the warrant improperly
relied on the informant's statements. The trial court granted judgment
as a matter of law for the defendants.

A federal appeals
court upheld this result. "A police officer may be liable for civil
damages for an arrest 'if no reasonable officer' would conclude that probable
cause exists," the court stated. In this case, the court found, the
investigating officer who submitted the affidavit for the warrant "was
not reckless in applying for the arrest warrant and that a reasonable competent
officer would have had probable cause" to arrest the plaintiff.

While the statements
made by the informant were "not without contradiction," other
evidence which corroborated her statements "was substantial enough
to support the officer's probable cause determination." Additionally,
there was sufficient evidence for the trial court to have properly concluded
that this officer was not aware of the informant's status as a paid informant
so that the officer did not knowingly or recklessly omit information in
his warrant affidavit.

Officers were not entitled to summary judgment
when there were disputed issues of fact including discrepancies between
their stories as to what transpired after they chased a suspect into a
field and then shot and killed him, allegedly believing (mistakenly) that
he was armed.

Officers
responded to a radio report that a motorist involved in an accident was
attempting to assault a female passenger of the other vehicle. The radio
report stated that "there's a black male adult beating a female,"
and that he was armed with a handgun. When they arrived on the scene, the
officers saw the suspect running north on a bridge, and both of them got
out of their vehicle and began pursuit on foot, drawing their weapons and
chasing him into an unlit field nearby.

The suspect ignored
the officers' commands to show them his hands. Instead, he allegedly stopped,
turned to face them, and looking directly at one of them, uttered obscenities.
The officers then fired their weapons seven times, killing the suspect,
who ultimately turned out not to be armed.

In a federal civil
rights lawsuit by the decedent's estate alleging excessive force, the officers
sought summary judgment on the basis of qualified immunity, which was denied
by the trial court. The U.S. Supreme Court then decided Saucier
v. Katz, 533 U.S. 194 (2001), and the officers again sought qualified
immunity, arguing that Saucier clarified the applicability of qualified
immunity to excessive force claims, and that, according to that decision,
the court should determine that their actions and beliefs were reasonable
under the circumstances. The officers also argued that no disputed factual
issues existed any longer. The trial court again denied their motion.

Upholding this result,
a federal appeals court found that there were sufficient disputed factual
issues present to preclude summary judgment for the officers. It noted
that while each officer testified that the suspect turned around in a "shooting
stance," their testimony was not consistent, with their statements
being unclear as to whether they thought they saw the suspect take a "two-handed
shooting stance," or whether he had only one hand on the gun they
thought he had. There was also a discrepancy as to whether or not the suspect's
arms were fully extended, and there was evidence that the suspect was shot
by the officers in the palm of his hand, which the court stated was "difficult
to square" with their testimony that he took a shooting stance.

The appeals court
also disagreed with the officers' characterization of the testimony of
a police procedure expert as having "clarified" any or all disputed
factual issues in their favor, since part of his testimony was that the
officers' belief that the suspect was armed was not objectively reasonable
under the circumstances, and that the use of force by the officers was
"totally unwarranted."

The appeals court
also stated that the cases involving each of the two officers should be
"analyzed separately, so far as the issue of qualified immunity is
concerned," but cautioned that this did not mean that, in considering
the position of each officer, only their own version of the events is to
be looked to. Instead, the jury will hear both officers' versions of events,
and "consider them as to both defendants."

In summary, because
of "internal contradictions within one of the officers' testimony,
as well as some contradictions between the two officers' testimony,"
some physical evidence "inconsistent with the defendants' account
of the incident," and the expert testimony of the police-procedure
expert, the officers were found not to be entitled to summary judgment
as a matter of law on the issue of qualified immunity.

Police detective did not violate motorist's
rights by shooting and killing him after he attacked the detective and
had gained the upper hand in a physical fight in which he was attempting
to obtain possession of the detective's gun. Federal appeals court overturns
trial court's denial of summary judgment for detective, and rejects argument
that detective's supposed tactical errors in the confrontation made his
use of force unreasonable.

A Boise Idaho police
detective was driving home in his unmarked police car with his wife and
daughter from a concert at which he served as a private security guard
and they served as ushers. A motorist passed him, tires squealing and almost
had a head-on collision with an approaching car. The detective turned on
his blue police lights and gave chase. While he did not then know it, the
pursued car had just been in a hit-and-run collision and other officers
were already looking for it.

The pursued car
accelerated instead of pulling over, turning off its headlights. The detective
turned on his siren and radioed his situation to the dispatcher. The pursued
car then crashed into the curb. The detective got out of his vehicle, intending
to render first aid and then arrest the driver for felony reckless driving.
He walked toward the vehicle holding his gun in one hand and a big 16 inch
metal flashlight in the other.

The detective identified
himself as an officer. The driver, who was "very drunk," did
not respond to the detective's orders to place his hands on the steering
wheel. To a repeated request, he asked, "If I don't, are you going
to shoot me?," to which the detective answered, "If I have to."

The motorist attempted
to race away in his car, but it was "too damaged to move." The
detective reached inside the car to turn off the ignition, whereupon the
motorist grabbed the detective's flashlight, but the detective pulled it
away from him. The detective attempted to handcuff the motorist, who then
started hitting him. The motorist got out of the vehicle and "came
at" the detective swinging.

A physical altercation
ensued, during which the detective hit the suspect with his flashlight,
and the suspect started kicking the detective in the stomach and groin.
Ultimately, the two men struggled for control of the detective's gun. At
one point, while they were still struggling for control of the gun, the
detective fired, hitting and killing the motorist. Only two minutes and
thirty seconds had elapsed from the time when the detective reported to
the dispatcher that he had begun his pursuit of the vehicle.

The decedent's estate
and survivors sued the detective, the chief of police, and the city for
violation of federal civil rights and for various state law claims based
on negligence. The defendant detective sought summary judgment on the basis
of qualified immunity. The trial court denied the motion, relying in part
on an expert witness report expressing the opinion that the detective's
conduct was "tactically unreasonable and demonstrated a reckless disregard"
for the risk to himself and his wife and daughter.

The trial court
also expressed the opinion that the detective had no choice but to shoot,
assuming that the suspect's hand was on the gun. But it found that there
was an issue of fact as to whether the detective's tactics "recklessly
created the situation in which force would have to be used," by failing
to drop off his wife and daughter when the routine traffic stop turned
more serious, failing to await backup, failing to use his baton or spray
on the suspect, the decision to contact the suspect "with both hands
encumbered," and failing to release his magazine to make his gun unusable.
The trial court did, however, grant summary judgment to the defendant city
on a failure-to-train claim.

A federal appeals
court panel, by a 3-0 vote, has ruled that the defendant detective was
entitled to summary judgment. It found that the officer was completely
justified in using deadly force against the suspect after the motorist
attacked him. And it ruled that, even assuming the officer's actions before
that had been unwise, contained "tactical errors," or was negligent,
that did not render the officer's use of deadly force unreasonable once
he was attacked.

While there were
some disputes about the details of what happened, the appeals court noted
that all witnesses agreed that at the time of the shooting, the motorist
was continuing to resist arrest, had attacked the officer, and appeared
to be gaining the upper hand in the hand-to-hand combat. The issue of whether
or not the two men were grappling over the gun at the moment the officer
fired was "immaterial," since the motorist held the advantage
at that moment and therefore posed an immediate threat to the officer's
safety.

Under these circumstances,
the appeals court commented, the detective could have reasonably shot the
motorist even if he had just pushed the motorist back a few feet. The court
rejected the argument, under these circumstances, that the detective "shouldn't
have gotten himself into the situation, so he couldn't constitutionally
shoot his way out of it."

The appeals court
found that the estate had not established that the detective provoked the
motorist's attack, "much less committed an independent Fourth
Amendment violation that provoked it. All of the estate's criticisms"
of the detective's tactics, the court commented, fit the "20/20 vision
of hindsight" category that Graham
v. Connor, 490 U.S. 386 (1989) holds "must be disregarded."
The court stated that even if it were to assume that the officer should
have sat in his car until backup arrived, or donned all of his equipment
before approaching the suspect, or have taken precautions against the motorist
grabbing him by his throat and pulling himself out of the car window to
attack him, or that the detective should have dropped off his wife and
daughter, none of these supposed errors "could be deemed intentional
or reckless, much less unconstitutional, provocations" that caused
the motorist to attack him.

In summary, the
appeals court found that the detective did not violate the motorist's constitutional
rights by shooting him under the circumstances.

Sheriff's policy, far from causing an unlawful
arrest of the plaintiff on charges of impersonating an officer and selling
alarm systems without a license, was a "textbook example" of
proper arrest procedure, with the sheriff instructing his deputy to consult
with a prosecutor as to whether the elements of the offenses appeared to
be present and then, if so, obtain an arrest warrant from a magistrate.
Deputy was also entitled to qualified immunity, and subsequent dismissal
of charges against arrestee did not alter the result.

A sheriff's deputy
obtained an arrest warrant charging an individual with selling alarm systems
without a license, impersonating a law enforcement officer, and obtaining
property under false pretenses, and then arrested the suspect. The affidavit
for the warrant was based on a number of reports of a black male driving
a black Chevy Blazer, telling or implying to elderly citizens that he was
a law enforcement officer and then attempting to sell them alarm systems.

The deputy had been
told by the sheriff, after obtaining various information, to consult with
the district attorneys' office, and then, if the prosecutor agreed, to
present the information to a magistrate to determine if an arrest warrant
should be issued. The prosecutor agreed that the facts supported probable
cause, and the magistrate issued the warrant on the basis of the deputy's
affidavit. The prosecutor subsequently, however, dismissed all of the charges
against the arrestee, after the arrestee's lawyer agreed to counsel him
on how to "operate his business within the law." The arrestee
then sued the sheriff, the deputy, and the county (and its insurer) on
claims of malicious prosecution and false arrest.

The trial court rejected
the defendant sheriff's Eleventh
Amendment defense, ruling that, under North Carolina law, he was a
local official, rather than a state official, so that the immunity afforded
against states and state officials from suit in federal court did not apply.

At the same time,
the court ruled that the defendant sheriff was entitled to summary judgment,
because the plaintiff had not shown that his arrest resulted from any improper
official policy or custom of the sheriff's office. The only apparent policy
that the sheriff's office was shown to have was that, in accordance with
state and federal law, all arrests must have been preceded by a determination
that probable cause existed for the arrest, which was proper. Additionally,
the sheriff did not personally direct or otherwise cause the arrest or
ratify it.

All the sheriff
instructed the deputy to do was to consult with the prosecutor to determine
if the elements of a crime had been met, and if so, to then speak to the
magistrate to see if probable cause existed to issue a warrant. "This
advice, a textbook explanation of proper arrest procedure, can scarcely
be construed as an exhortation to arrest plaintiff in violation of his
Fourth Amendment
rights," the court commented.

The court also ruled
that the individual deputy was entitled to qualified immunity, as he made
the arrest pursuant to a facially valid warrant. Additionally, the court
found that the evidence showed that the deputy acted reasonably in obtaining
and executing the arrest warrant under the circumstances.

"The fact that
the charges against plaintiff were eventually dismissed does not imply
that his arrest, pursuant to a properly-obtained warrant, was unlawful.
In the well-known words of then-Justice Rehnquist, 'The Constitution does
not guarantee that only the guilty will be arrested.'"

The court declined,
after disposing of the federal claims, to exercise jurisdiction to hear
state law claims also asserted in the complaint.

Off-duty sheriff's deputies, in making a "mass
purchase" of copies of a weekly community newspaper which published
an article critical of the sheriff on the night before the vote on his
re-election, did not act "under color of state law" for purposes
of a federal civil rights lawsuit claiming violation of First, Fourth and
Fourteenth Amendment rights. Sheriff's contribution of money towards the
mass purchase and expression of his approval of the action was also not
an act under color of state law.

The publisher of
a weekly community newspaper in Maryland had published a number of articles
that were highly critical of public officials, including the local sheriff
and his deputies. This included articles referring to one deputy as a "drunk,"
another as a "child abuser" and a "lazy" officer, and
a third as a "shoeshine boy." November 3, 1998 was election day
in the county and the sheriff was running for re-election, as was the State's
Attorney, who had also been criticized by the paper.

About a week before
the election, some of the deputies in the sheriff's department began to
construct a plan to buy up a large number of copies of the newspaper on
the night before the election when the papers were scheduled to be delivered
to stores and newsboxes. The sheriff, while he did not participate in the
mass purchase, stated that he knew about the plan and had communicated
his support for the idea.

Off-duty deputies,
wearing plain clothes and driving private vehicles made purchases at stores
and newsboxes throughout the evening and into the night until 7 a.m. the
next morning. The publisher contends that they purchases 1,379 newspapers.
Those participating in the purchases obtained receipts from the stores
for their purchases and videotaped their purchases from newsboxes. Some
of them also wore stickers depicting a copy of the community newspaper
going into a trash can, and handed these stickers out.

The deputies prediction
that the election day edition of the paper would run negative stories about
the sheriff and states' attorney were "realized," with a large
headline stating that "Fritz Guilty of Rape," referring to a
1965 guilty plea entered by the states' attorney to carnal knowledge of
a minor. Another headline in the paper was entitled "Woman Supervisor
Ordered Him to Have Sex, Says Cop," criticizing the sheriff's handling
of an alleged sexual harassment complaint.

The newspaper publisher
filed a federal civil rights lawsuit claiming that the mass purchase of
the newspaper violated its First,
Fourth, and
Fourteenth
Amendment rights. The complaint also asserted claims for violations of
the corresponding rights under the Maryland state constitution, and common
law claims for tortious interference with business relations and civil
conspiracy.

The federal trial
court granted summary judgment to the defendants on all federal claims
and declined to exercise jurisdiction over the remaining state law claims.

The court based
its decision, as regards the off-duty deputies, on a ruling that they did
not act under color of state law, as required for liability under 42
U.S.C. Sec. 1983, in making the purchases. There was no connection
between the off-duty deputies' actions and their positions as state officials.
The fact that their conduct may have been "related to or motivated
by their state employment" did not "transform" their conduct
into state action.

The court found
no evidence that store clerks were "intimidated or coerced" into
selling the defendants newspapers that they otherwise would not sell, and
no evidence that any of them used their authority as officers to prevent
others from purchasing a copy of the newspaper. The court also found that
the sheriff did not act under color of state law or as a policymaker when
he expressed his approval of the deputies' plan or contributed money towards
it. There was no evidence that the sheriff "directed or ordered defendants
to carry out the mass purchase, nor that he had reason to believe it constituted
state action." Rather, he "contributed to and supported
the private pursuits of his deputies."

The court also ruled
that one on-duty deputy, sued in the complaint, had not personally participated
in the mass purchase, and therefore also could not be held liable.

Police officers could not recover damages for
defamation against television network which put African-American "testers"
in an expensive car on the road in order to determine whether the officers
would stop them, and then surreptitiously recorded and broadcast the resulting
stop on television under the title "Driving While Black."

New Jersey police
officers stopped a Mercedes Benz car in which three young African-American
males were riding, after the driver allegedly changed lanes without signaling.
The officers allegedly demanded identification from the three, and ordered
all three out of the vehicle when the back-seat passenger stated that he
did not have any identification. The officers then frisked the men, searched
the car's interior, found no contraband, and released them. The three occupants
of the car, unknown to the officers, were employees of the ABC television
network which had arranged for these "testers" to cruise in an
expensive car to find out if the police would stop them.

The incident was
surreptitiously recorded with cameras concealed in the Mercedes and also
in a van which followed the Mercedes. The incident was subsequently broadcast
on a show called PrimeTime Live in a segment entitled "DWB" (Driving
While Black).

The three officers
involved in the incident sued the network and a number of its employees,
contending that the broadcast was defamatory and portrayed them in a false
light. The complaint also contended that the portion of the recording which
contained a conversation between two of the officers while they were conducting
the search violated the New Jersey Wiretapping and Electronic Surveillance
Control Act, N.J.S.A. 2A:156A-1 to -34, and that the defendants "fraudulently
procured the tape of the incident.

An intermediate
New Jersey appeals court upheld summary judgment for the defendants on
all of the plaintiffs' claims. The court found that the officers could
not recover for defamation or false light invasion of privacy, despite
their contention that a statement in the broadcast that they searched the
car without consent was false. The court found that the evidence showed
that this statement was true, and that the evidence was "so one-sided"
that no reasonable jury could have found that there was consent to search
the car.

The court further
noted that a police officer is a public official under New Jersey law and
that liability for defamation must therefore be based on a showing that
false statements which related to their official conduct were published
with actual malice, which could not be found to be present here.

The court also held
that the officers' removal of the passengers from the car during the traffic
stop, as well as their actions in frisking them and searching the car were
all unreasonable, as the officers had no reason to fear for their safety.
The court rejected arguments that the officers had reason to fear danger
because the back seat passenger expressed displeasure at being asked for
identification, or because the car was cruising in a "high drug"
area on another occasion, or because the driver's insurance card had expired.
Further, there was no indication that any allegedly "suspicious"
items in the car contained contraband.

Additionally, the
court found that the officers were not justified in demanding identification
from the passengers to begin with since they did not then suspect them
of any crime, and had no reason to believe that they were armed, dangerous,
or involved in any criminal activities.

The court also rejected
the argument that interception of the recorded conversation between the
officers while they searched the car, outside the presence of the car's
occupants, in which an officer stated that there was "probably dope"
in the vehicle in a locked cosmetic case located there, was a protected
"oral communication" under the state's wiretapping law. The officers
had no reasonable expectation of privacy, the court found, when they engaged
in the conversation, since the location of the conversation was "more
akin" to an open, accessible place than an enclosed indoor room. The
search of the car occurred on the shoulder of a busy public highway, the
four doors of the car were wide open during the search, and the officers
were "public servants performing their police function in public view."

Finally, the court
held that the First
Amendment to the U.S. Constitution barred recovery on the police officers'
"fraud" claim against the television network and other defendants.

City could sue transit district in California
to recover benefits paid to officer injured on the job when a railroad
crossing arm broke and struck him on the head, and officer could pursue
personal injury claims as well. Firefighter's rule did not bar recovery
when statutory "independent cause" exception to the rule applied.
Negligence which allegedly caused the officer's injury was not the same
as the one that prompted the officer's presence at the scene in the first
place.

A California
police officer was dispatched to a railroad crossing in downtown San Diego
because the crossing-gate arms at the railroad tracks were stuck in the
"down" position and traffic was backing up. While he was directing
traffic, another officer manually lifted the crossing-gate arm across the
street from where he was standing, and the arm on his side also responded
to this manual movement, with all the crossing-gate arms moving into a
vertical position.

Seeing that traffic
could now flow normally again, the officer turned his back to the crossing
and began to return to his vehicle. At that point, the crossing-gate arm
nearest him broke and fell, falling sideways and striking him on the head.
It subsequently appeared that two bolts connecting the crossing-gate arm
to the lifting mechanism had broken, causing it to fall sideways rather
than straight down. "The bolts found near the collapsed arm appeared
to be unrelated to the electrical unit that raised and lowered the arm."

The officer sued
the transit district and several other entities to recover damages for
personal injury. The city, which covered the officer's workers' compensation
claim, intervened in the case to recover benefits paid to the injured officer.
The trial court granted summary judgment in favor of the Defendants on
the ground that the "firefighter's rule" precluded the recovery
of damages.

That doctrine generally
bars firefighters and police officers from suing those whose negligence
caused or contributed to a fire or dangerous condition that, in turn caused
the firefighter's or officer's injury or death.

A federal appeals
court applying California state law held that the firefighter's rule did
not preclude the officer and city from bringing the lawsuit, because an
"independent cause" exception to the rule, provided by a California
state statute, Cal. Civ. Code Sec.
1714.9(e), may apply. Under that exception, the firefighter's rule
does not shield a defendant from acts of misconduct which are "independent"
from those which required the officer to be summoned to the scene. The
rule does not apply when the alleged act of negligence that caused the
injury is not the same act as the one which prompted the officer's presence
at the scene in the first place.

The court also held
that this exception to the rule could be applied in the case even though
the officer's injuries occurred before the enactment of the statute in
question, since the statute was intended only to "clarify existing
law" and did not change or modify the law in existence at the time
of the incident.

In this case, the
appeals court ruled, there was a genuine issue of material fact as to whether
the collapse of the railroad crossing-gate arm which hit the officer was
unrelated to the faulty lifting mechanism that caused the arm to become
stuck in the first place, which was the reason for the officer being summoned
to direct traffic at the scene.

The court also found
that the city had a right, under California law, to pursue its claim for
recovery of amounts paid to the officer for his workers' compensation claim,
even though it was the city employees' retirement system and not the city
which paid the benefits to the officer. As a result of the benefits paid
to the officer, the city was required to pay more into the disability retirement
system than it otherwise would have had the officer retired under an ordinary
service retirement pension.

Employee fired from her job after police detective
allegedly falsely told her employer that she had been identified as using
a credit card from a co-employee's stolen wallet did not present any evidence
that the detective was motivated by racial animosity towards her as an
African-American. Detective was also not liable, in any way, for her firing,
which was the independent decision of her employer and did not involve
governmental action.

The plaintiff,
an African-American female, worked for a private employer in an office
job. The office manager discovered that her wallet was missing and her
credit card was subsequently used to make fraudulent purchases from a number
of stores at a nearby shopping mall. The office manager had discussions
with store employees at two stores, describing the purchasers as "two
African-American women," with one wearing a headband. These descriptions,
along with the plaintiff's demeanor, allegedly made the office manager
suspect the plaintiff of having taken her wallet, and she communicated
this to management personnel.

A police detective
subsequently took a statement from the office manager and asked for photos
of the plaintiff and another black female employee whom the police also
suspected of being involved in the theft. Copies of the two women's drivers
license pictures were supplied to the detective from their employment files.
He took these photos to the stores, where one of the employees said that
he "could not be sure," but that the photos looked "similar"
to the suspects, and where another employee stated that he could make no
identification since he had not been on duty at the time of the purchases.

The detective subsequently
interviewed several employees at the office, including the plaintiff, telling
her in particular that there were videotapes and identifications of her
and that she had the "opportunity to turn herself in." She allegedly
said "If you have so much evidence, why don't you arrest me now?"
and a loud confrontation allegedly took place. According to the plaintiff,
despite the fact that the detective "apparently realized that he had
no useful identification," he told a manager at her company that mall
employees had identified her as the person who used the credit card. The
manager decided to suspend, and then terminate, the plaintiff.

No charges were
ever brought against the plaintiff, and she sued the detective and the
city under 42
U.S.C. Sec. 1983 and 42
U.S.C. Sec. 1985(3), claiming that he violated her Fourth
Amendment rights against unreasonable search and seizure, her Fourteenth
Amendment due process rights, and engaged in a conspiracy to violate her
civil rights and racially discriminate against her.

Granting summary
judgment for the defendant detective and city, the federal trial court
found that the plaintiff's Fourth Amendment rights were not violated during
the detective's investigation into the theft. The court noted that the
detective's actions did not involve either an arrest of the plaintiff or
a search of her or her belongings.

The court also found
no violation of due process, even if the detective's use of only the two
photographs to display to store employees was an "unduly suggestive
photo lineup," since no suspect was ever positively identified by
any store employee or arrested on any charge. Additionally, the court noted
that the plaintiff did not have a property interest in her continued employment
that was protected by the due process clause of the Fourteenth Amendment,
since she was an employee "at will" who, under New Jersey state
law, could be fired at any time for any reason or for no reason at all.
Accordingly, she had no reasonable expectation of continued employment
that could have been violated by the detective's actions.

Further, the firing
did not involve governmental action in any way, even if it was based in
part on information provided by the detective to her employer, since he
did not coerce or encourage her employer to fire her, and the employer
made its own independent decision to fire her on suspicion of dishonesty
and did not base its decision on the statement of the detective alone.

Rejecting the plaintiff's
claim of conspiracy to violate her civil rights, the court noted that to
make a claim under 42
U.S.C. Sec. 1985(3) an aggrieved party must show that two or more persons
conspired to deprive the plaintiff of the equal protection of the law,
that one of them performed an overt act in the furtherance of the conspiracy,
and that the overt act injures the plaintiff in their person or property.

In this case, the
court found, there was no evidence of any "collaboration" between
the detective and employer, so no "conspiracy" could be proven.

Additionally, there
was no evidence of "racial animosity" as a motive in the detective's
actions. "As long as a person is not targeted purely because of his
race (i.e., if plaintiff were targeted absent any description or other
evidence), it is permissible for law enforcement to consider race as one
of a suspect's identifying characteristics."

Officer did not act improperly in obtaining
a search warrant for a residence, based on informant's identification of
a resident as being involved in a counterfeiting operation, despite the
fact that the informant's identification subsequently turned out to be
mistaken. Other officers participating in the search reasonably relied
on the facial validity of the search warrant.

As part of a counterfeit
investigation, eleven city police officers, a county police officer, and
a Secret Service special agent executed a search warrant on a residence.
The warrant also authorized a search of one of the persons who lived there.
Two residents of the home sued claiming that the search violated their
Fourth Amendment
rights, and one of them also claimed that he was wrongfully arrested following
the search, on charges of driving without a valid license. No evidence
related to an ongoing criminal enterprise were found. "In retrospect,"
a federal court later commented, "it is clear that the warrant"
was based upon "a misidentification by a cooperating witness."

Despite this, the
court ruled that the defendant officers were entitled to summary judgment.
The officer who obtained the warrant had probable cause to search the residence
of the person who his informant had identified as being a suspected counterfeiter.
Although the informant was incorrect in identifying the resident, the officer
had a reasonable belief in the truth of the identification. The resident's
physical characteristics listed in police records matched the informant's
description (even if his actual characteristics were somewhat different),
and the informant picked the resident's photograph from six pictures presented,
even if with some initial hesitation. Further, the person the informant
identified lived at the same location the informant had previously identified
as the site of the counterfeiting activity.

The fact that the
officer had no information that the resident had ever gone by the suspected
counterfeiter's name did not eliminate the existence of probable cause,
given the other information known to the officer.

As for other officers
who participated in the search, they had no reason at all to question the
warrant which had been signed by a judge, and they proceeded on the reasonable
belief that the warrant was valid and that the search was necessary.

The court also rejected
the argument that the officers acted improperly in handcuffing the resident
during the search of his home after finding his expired drivers license.
The officers had information that his previous arrest had been for carrying
a concealed deadly weapon, and the officers had found such a weapon during
their search, so they had a valid reason to be concerned for their own
safety during the search. The officers determined that his license was
expired and that he had been driving an automobile. As for the reasonableness
of this arrest, the court noted that the arrestee ultimately pled guilty
to the charges against him concerning driving without a license.

City could not be held liable for shooting
and killing of apartment occupant following allegedly unconstitutional
warrantless entry. Evidence of eleven prior incidents of warrantless searches
of residences by a gang task force was insufficient to establish the existence
of a municipal custom of warrantless searches of residences in violation
of the Fourth Amendment. Appeals court also rejects claim for liability
based on inadequate training theory.

Houston, Texas
police officers who were members of a gang task force were patrolling when
they stopped a car for a traffic violation. This led to the arrest of the
driver, who volunteered to give information about his drug supplier in
exchange for lenient treatment. These two officers, and other members of
the task force, had the driver knock on the door of the alleged drug supplier's
apartment. They did not obtain a warrant. When the door opened, the driver
dropped to the ground, and the officers rushed into the residence.

There were several
people in the apartment, and in the commotion one of the officers apparently
shot another in the back, followed by a "fusillade from the officers"
killing one of the residents of the apartment. A gun was subsequently found
near the body of the decedent, although it was disputed who owned it.

The decedent's family
members filed a federal civil rights lawsuit against the city, and the
federal trial court granted the city's motion for summary judgment.

A federal appeals
court upheld this result as to all federal claims against the city, and
held that the trial court should not have exercised jurisdiction over remaining
state law claims.

The appeals court
noted that a city cannot be held liable under federal civil rights law
simply for being the employer of the officer, as there is no vicarious
liability under 42
U.S.C. Sec. 1983.

The court also rejected
the argument that evidence presented of eleven prior incidents of warrantless
searches of residences by gang task force members was sufficient to establish
the existence of an unwritten municipal custom of warrantless searches
of residences in violation of the Fourth Amendment. This number of incidents
"cannot support a pattern of illegality in one of the Nation's largest
cities and police forces," the appeals court stated. "The extrapolation
fails both because the inference of illegality is truly uncompelling--giving
presumptive weight as it does to the absence of warrant--and because the
sample of alleged unconstitutional events is just too small."

Going further, the
appeals court stated that even if the eleven incidents alleged were enough
to show a pattern of unconstitutional searches, this would still not establish
municipal liability in the absence of any evidence of actual or constructive
knowledge of this by a policy-making official. "Opinion evidence"
that offense reports and the number of warrantless searches "sent
a clear signal" to supervisors and policymakers that a pattern of
unconstitutional behavior existed was "not sufficient" the court
commented.

The appeals court
also found that there was insufficient evidence that the police officers
who conducted the complained of search were "inadequately trained"
in the Fourth Amendment's warrant requirement and as to when a warrantless
search could be conducted. Additionally, even if there had been some shortcomings
in the officers' training regarding warrantless searches of residences,
in the absence of any evidence of a "causal relationship" between
such shortcomings and the shooting, there could be no municipal liability.

A genuine issue
of material fact existed as to whether officers should have known, objectively,
that they were putting the handcuffs on a detained person so tightly that
they would cut into her skin and cause permanent damage, but officers'
subsequent use of force to push detainee to her knees and place her in
restraints at a hospital where she was involuntarily admitted was not excessive.
Threlkeld v. White Castle Systems, Inc., 201 F. Supp. 2d 834 (N.D. Ill.
2002).

Defenses: Notice of Claim

Arrestee's letter
to county attorney's office stating his intention to sue the county police
department for injuries incurred during his arrest was insufficient to
satisfy the notice requirements of Maryland's Local Government Tort Claims
Act, Md. Code. Courts and Judicial Proceedings, Sec. 5-304(a) when the
letter indicated that the arrest was made by town police officers and did
not state what action, if any, was taken by county police officers. Lanford
v. Prince George's County, Md., 199 F. Supp. 2d 297 (D. Md. 2002).

Defenses: Judicial Bias

Trial judge did
not abuse its discretion in denying plaintiff arrestee's motion that he
recuse himself. Plaintiff only made the allegation of judicial bias "well
after judgment" against him in his federal civil rights lawsuit against
arresting officers, and only asserted his claim of bias in a "conclusory
manner" without stating any facts that would convince a reasonable
person that personal or extrajudicial bias existed. Wilson v. Holt, #01-5298,
35 Fed. Appx. 189 (6th Cir. 2002).

Defenses: Qualified (Good-Faith)
Immunity

A reasonable police
officer would have known that shooting a motorist in the back during a
routine traffic stop when he posed no immediate threat to the officer and
was not attempting to flee was an excessive use of force, precluding qualified
immunity. Appeals court had no jurisdiction to review the trial court's
determination, in denying qualified immunity to officer, that there were
factual issues as to whether the officer shot the motorist in the back.
Lewis
v. Boucher, #01-1584, 35 Fed. Appx. 64 (4th Cir. 2002).

Officers who made
a warrantless entry into the plaintiff's home in February of 1999 to make
a "welfare check" were entitled to qualified immunity in the
homeowner's federal civil rights lawsuit when the law in the federal appeals
circuit on that date on the police officers' community caretaking function
to respond to emergency situations was not clearly established on date,
but was instead subsequently decided in United
States v. Cervantes, 219 F.3d 882 (9th Cir. 2000), cert. denied, 532
U.S. 9122 (2001). Humphrey v. Lane County, #00-36036, 35 Fed. Appx. 538
(9th Cir. 2002).

Defenses: Sovereign Immunity

The U.S. government
has not waived sovereign immunity for a Fourth Amendment lawsuit against
the U.S. Marshal Service and the Marshal in his official capacity. Curtis
v. Pracht, 202 F. Supp. 2d 406 (D. Md. 2002).

False Arrest/Imprisonment: No
Warrant

Officers
had probable cause to make an arrest for disturbing the peace when the
arrestee had interfered with a traffic investigation, ignored instructions
to return to a house, and used profanity in a loud voice. Arrestee's subsequent
acquittal did not alter the result. Merritt v. City of Oakdale, No. 01-1533,
817 So. 2d 487 (La. App. 3d Cir. 2002).

False Arrest/Imprisonment: Warrant

Officers did not
violate the Fourth Amendment when they took the arrestee into custody under
a facially valid warrant, ignoring his protests that he had already served
a sentence for the probation violation for which the warrant was issued.
Peacock v. Mayor and City Council of Baltimore, 199 F. Supp. 2d 306 (D.
Md. 2002).

First Amendment

Ordinance barring
"religious or political activities" in municipal amphitheater
violated the First Amendment and a preliminary injunction against its enforcement
would be issued. Firecross Ministries v. Municipality of Ponce, 204 F.
Supp. 2d 244 (D. Puerto Rico 2002).

Village ordinance,
which made it a misdemeanor to engage in door-to-door "canvassing"
without first obtaining a permit and registering with the mayor's office,
violated the First Amendment in preventing religious "witnessing"
and anonymous political speech. Watchtower
Bible & Tract Society of New York, Inc. v. Village of Stratton,
#00-1737, 122 S. Ct. 2080 (2002).

Police department
study concluding that concentrations of "adult" entertainment
establishments are associated with higher crime rates in surrounding communities
was reasonably relied on by city in enacting ordinance prohibiting such
enterprises within 1,000 feet of each other or within 500 feet of a religious
institution, school, or public park. City
of Los Angeles v. Alameda Books, Inc., #00-799, 122 S. Ct. 1728 (2002).

Governmental Liability: Policy/Custom

Plaintiff's claim
that officer struck him with a police car, beat him with a night stick
while he was handcuffed, and smacked his face on the side of the car while
placing him in it, even if true, did not state a claim for federal civil
rights liability against the city when there was no allegation of a governmental
policy or custom which caused the alleged harm. The plaintiff's claim was
also time-barred under Kentucky's one-year statute of limitations, since
that statute began to run on the date of the arrest, and he filed his lawsuit
more than one year later. Watson v. Baxter, #01-5971, 35 Fed. Appx. 118
(6th Cir. 2002).

Malicious Prosecution

Reversal of criminal
convictions for larcency and unlawful practice of law on the basis that
the Attorney General did not have the authority to prosecute the accused
under the state law was not a "favorable termination" for the
accused for purposes of a malicious prosecution lawsuit when there was
probable cause for the criminal prosecution and the accused was indicted
by a grand jury. Romero v. State of New York, 742 N.Y.S.2d 701 (A.D. 2002).

Procedural: Appeal

Members of a class
who are not named class representatives may still appeal settlements of
federal class action lawsuits. Devlin
v. Scardelletti, #01-417, 122 S. Ct. 2005 (2002).

Procedural: Evidence

Jury was presumed to have
followed trial judge's instructions that lawyers' statements and arguments
were not evidence, so that alleged misconduct by defendant police officers'
lawyer in giving inference to the jury about items not in evidence during
closing arguments was insufficient to support a reversal of the jury's
verdict for the defendants in a homeowner's federal civil rights lawsuit
over alleged unreasonable search of her house under a warrant. Jones
v. Williams, #00-56929, 35 Fed. Appx. 424 (9th Cir. 2002). (.pdf format).

Procedural: Section 1983
in General

Indigent plaintiff
had no constitutional or statutory right to effective assistance of counsel
in his Section
1983 excessive force lawsuit, so that any error the trial judge made
in failing to appoint a substitute lawyer was harmless and jury's award
for defendants upheld on appeal. Plaintiff's only available remedy for
alleged ineffective assistance of counsel would be a lawsuit for legal
malpractice. Taylor
v. Dickel, #01-2102, 293 F.3d 427 (8th Cir. 2002). (.pdf format).

Search and Seizure: Home/Business

Police officers
acted in a reasonable manner for purposes of qualified immunity in reading
warrants of attachment for contempt as allowing them to enter his motel
room when they stated that they could be served in the daytime in a public
place when it was not clear under prior Idaho law whether the restrictions
were to be read "conjunctively or disjunctively." Plaintiff was
also barred under the doctrine of collateral estoppel from relitigating
the issue of whether the officers complied with the "knock and announce"
rule when it was determined at criminal trial suppression hearing that
they had. Hall v. Tudbury, #00-35831, 35 Fed. Appx. 428 (9th Cir. 2002).

Disputed issues
of material fact existed as to whether the mother of a resident's child
consented to police detectives opening and damaging a locked safe in his
home and whether a reasonable officer would have considered her authorized
to do so, precluding qualified immunity for the detectives in the resident's
federal civil rights lawsuit for the alleged unlawful search of his house
and locked safe. Smith
v. Heimer, #02-1042, 35 Fed. Appx. 293 (8th Cir. 2002). (.pdf format).